Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Kentucky State Treasurer properly denied Ms. Hines's request to inspect either a computer database or hard copy of property reported abandoned in 1998, pursuant to KRS 393.110. We believe that 99-ORD-34, and in particular the discussion at pages five through eight of that decision, are controlling. A copy of 99-ORD-34 is attached hereto and incorporated by reference.
The Franklin Circuit Court in Commonwealth of Kentucky, Department of the Treasury v. Mindy Hines , Civil Action Nos. 98-CI-00134 and 98-CI-0345, decided January 21, 1999, a case involving both parties to this appeal, held that the specter of frequent and unlimited access to the Treasury's database, which contained information of a personal nature which required redaction under KRS 61.878(1)(a), by the public and commercial finders could become so burdensome as to disrupt its essential function of managing unclaimed property and found her request improper under KRS 61.872(6). As a less restrictive alternative, the Court recognized that the Treasury had a mechanism in place to supply the requested nonexempt information via the publication of its annual commercial list.
Information of a personal nature which required redaction in the case before the Franklin Circuit Court were the social security number and account numbers of each account. The issue of whether the amount of each unclaimed property owner's account was information of a personal or confidential nature, which also could be withheld from disclosure under KRS 61.878(1)(a), was not before the Franklin Circuit Court in Commonwealth of Kentucky, Department of the Treasury v. Mindy Hines, supra. However, it was before us in 99-ORD-34 and, after concluding that the unclaimed property owner had a privacy interest in the amount in his or her bank account, we held:
Thus, the public's right to know under the Open Records Act is premised upon its right to expect its agencies properly to execute their statutory functions. Providing access to the amount in the unclaimed property owners account, while maybe of understandable interest to a commercial finder, would reveal little or nothing about either the conduct or functioning of the Department in its efforts to locate the owner of that property. Accordingly, we conclude the disclosure of the amount of the account would constitute an unwarranted invasion of personal privacy and the Department could properly withhold that information under KRS 61.878(1)(a).
Thus, we held that the amount of an unclaimed property owner's account could be properly withheld from disclosure under KRS 61.878(1)(a). We reiterate that while the amount in the unclaimed property owner's account may advance Ms. Hines's commercial interests, it does not advance an open records related public interest. In our view, the Treasury's position is consistent with the provisions of the Open Records Act, 99-ORD-34, and the court's decision cited above. We conclude the Treasury properly denied Ms. Hines's request for access to either its computer database or a hard copy of property reported abandoned in 1998 for the reasons set forth in 99-ORD-34.
Moreover, as noted above, the Treasury has in place a mechanism to provide Ms. Hines with the nonexempted information she requested via the commercial annual list. The Franklin Circuit Court has declared that disclosure of the annual list satisfies the Treasury's obligations under the Open Records Act. Ms. Hines cannot secure by means of an appeal to this office, records she could not secure by appeal to the courts. The Treasury is not required to provide a copy of the 1998 annual list with the amount of the account on it. As we stated in 99-ORD-34:
Although the Department has provided access to the amount in the accounts in the past, prior to the adoption of its new policy adopted in 1998, it is not required to do so. Because the exemptions contained in KRS 61.878(1)(a) through (j) are permissive, the decision to remove or redact excepted material rests within the sound discretion of the public agency. OAG 89-76; 97-ORD-12.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.